NB005:0NB15:70784:LOUISVILLE
090899:1
JOINDER AGREEMENT
This Joinder Agreement (the "Joinder Agreement") is made and entered
into as of October 29, 1999, by and among:
(1) Commonwealth Industries, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Parent") and the
successor by merger to CI Holdings, Inc.;
(2) Commonwealth Aluminum Lewisport, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware and formerly known
as Commonwealth Aluminum Corporation ("Lewisport");
(3) Alflex Corporation, a corporation duly organized and validly
existing under the laws of the State of Delaware ("Alflex");
(4) Commonwealth Aluminum Concast, Inc., a corporation duly organized
and validly existing under the laws of the State of Ohio ("CACI"; each of CACI,
Lewisport and Alflex is sometimes hereafter referred to as a "Borrower" and
collectively as the "Borrowers");
(5) Commonwealth Aluminum Corporation, a corporation duly organized and
validly existing under the laws of the State of Delaware (the "New Borrower");
(6) The Subsidiary of the Parent identified by the caption "Subsidiary
Guarantor" on the signature pages hereto (the "Subsidiary Guarantor" and,
together with the Parent and the Borrowers, the "Obligors");
(7) Bank One, Indiana, NA, for itself and as administrative agent for
the Lenders (as hereafter defined) (the "Administrative Agent");
(8) PNC Bank, National Association ("PNC");
(9) ABN AMRO Bank N.V. ("ABN AMRO");
(10) Bank of Montreal ("Montreal");
(11) Credit Agricole Indosuez ("Indosuez");
(12) Mellon Bank, N.A. ("Mellon Bank"); and
(13) The Industrial Bank of Japan, Limited ("IBJ" and, together with
the Administrative Agent, PNC, ABN AMRO, Montreal, Indosuez and Mellon Bank, the
"Lenders").
PRELIMINARY STATEMENTS:
A. Parent, each of the Borrowers, each of the Subsidiary Guarantors and each of
the Lenders are parties to a certain Second Amended and Restated Credit
Agreement dated as of December 19, 1997, as amended by Amendment No. 1 to Credit
Agreement dated December 22, 1997, and an Agreement of Resignation, Appointment
and Acceptance dated August 18, 1999 (as amended from time to time, the "Credit
Agreement").
B. Parent, Lewisport, Alflex, CACI, the Subsidiary Guarantors and the
Administrative Agent (as successor to National Westminster Bank PLC pursuant to
the Agreement of Resignation, Appointment and Acceptance dated August 18, 1999)
are parties to a certain Amended and Restated Pledge and Security Agreement
dated as of November 29, 1996, as amended by Amendment No. 1 dated as of
December 19, 1997 (as amended, the "Pledge Agreement").
C. Lewisport has changed its name, and the Borrowers have requested that the
Lenders consent to such change of name.
D. C.I. Holdings, Inc., has merged with and into Parent, and the Borrowers have
requested that the Lenders consent to such merger.
E. New Borrower has become affiliated with the Borrowers, and the Borrowers have
requested that the Lenders agree to allow New Borrower to join as a Borrower
under the Credit Agreement.
NOW THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Joinder. The New Borrower hereby executes and delivers this Agreement to the
Lenders, pursuant to which the New Borrower joins as a "Borrower" (as defined in
the Credit Agreement), and becomes liable as a Borrower under, each of the
documents to which the Borrowers are parties (including without limitation the
Credit Agreement, each of the Revolving Credit Notes, each of the Swingline
Notes and the Pledge Agreement), jointly and severally liable with all other
Borrowers under and with respect to such documents. Each of the other Borrowers
consents to the joinder of the New Borrower.
2. Consent of Lenders. Each of the Lenders hereby (i) consents to the
change of Lewisport's name from Commonwealth Aluminum Corporation to
Commonwealth Aluminum Lewisport, Inc., (ii) consents to the merger of CI
Holdings, Inc., with and into Parent, and (iii) consents to the addition of the
New Borrower as, and agrees that the New Borrower shall be, a "Borrower" under
the Credit Agreement, the Revolving Credit Notes, the Swingline Notes, the
Pledge Agreement and each of the other documents to which the Borrowers are
parties.
3. Affirmation of Representations and Warranties. Each of the Borrowers
(including the New Borrower) hereby affirms that the representations and
warranties contained in the Credit Agreement and in the Pledge Agreement are
true and accurate as of the date of the execution and delivery of this Joinder
Agreement. Each further represents and warrants that each has the power to enter
into and perform this Joinder Agreement. The making and performance by the
Borrowers (including the New Borrower) and each of the Subsidiary Guarantors of
this Joinder Agreement has been duly authorized by all necessary corporate
action and will not violate any provision of law or of any of the Borrowers'
(including the New Borrower's) certificates of incorporation or bylaws, or
result in the breach of, or constitute a default under, any agreement or
instrument to which any of the Borrowers (including the New Borrower) or any
Subsidiary Guarantor is a party or by which any of the Borrowers (including the
New Borrower) or any Subsidiary Guarantor or any of their respective property
may be bound or affected, or result in the creation of any lien, charge or
encumbrance upon any property or assets of any of the Borrowers (including the
New Borrower) or any Subsidiary Guarantor, except as provided by this Joinder
Agreement (in the case of the New Borrower). No consent, approval,
authorization, declaration, exemption or other action by, or notice to, any
court or governmental or administrative agency or tribunal is or will be
required in connection with the execution, delivery, performance, validity or
enforcement of this Joinder Agreement or any other agreement, instrument or
document to be executed and delivered pursuant hereto.
4. No Impairment and Ratification. Each Subsidiary Guarantor consents
to the entering into of this Joinder Agreement by each of the Borrowers
(including the New Borrower), each of the Subsidiary Guarantors and the Lenders
and agrees that neither this Joinder Agreement nor anything contained herein or
in any other document or instrument delivered in connection herewith shall
diminish or impair its liability in any respect under its Guaranty, which
Guaranty is, by the execution and delivery of this Joinder Agreement, ratified,
confirmed and reaffirmed in their entirety, and acknowledged to continue in full
force and effect.
5. Ratification. Except as expressly amended by this Joinder Agreement,
the Credit Agreement, the Pledge Agreement and the Guaranties are and shall be
unchanged, and all of the terms, provisions, covenants, agreements, conditions,
schedules and exhibits thereof or thereto shall remain and continue in full
force and effect and are hereby incorporated by reference, and hereby ratified,
reaffirmed and confirmed by the Borrowers (including the New Borrower), each
Subsidiary Guarantor and the Lenders in all respects on and as of the effective
date of this Amendment. Each Subsidiary Guarantor and each of the Borrowers
(including the New Borrower) acknowledges and agrees that all liens, security
interests, and pledges heretofore given to the Lenders to secure their
respective indebtedness to the Lenders shall also secure all obligations arising
hereunder.
6. Conditions. The Lenders' agreements and consents in this Joinder
Agreement are and shall be subject to the prior satisfaction of the following
conditions precedent:
(a) Execution and Delivery of this Joinder Agreement. All of
the parties to this Joinder Agreement shall have executed and delivered a
counterpart hereof.
(b) Evidence of Existence and Authorzation. The Administrative
Agent shall have received the following:
(i) for the New Borrower, a copy of charter documents, by-laws and
resolutions relating to New Borrower's execution and delivery of this Joinder
Agreement, all certified as true, correct and complete by the Secretary or an
Assistant Secretary of the New Borrower;
(ii) for Parent, a copy of the charter documents reflecting the merger of
CI Holdings, Inc., with and into the Parent, all certified as true, correct and
complete by the Secretary or an Assistant Secretary of the Parent; and
(iii) for all Obligors, copies of resolutions
relating to the execution and delivery of this Joinder
Agreement, all certified as true, correct and complete by the Secretary or an
Assistant Secretary of each Obligor.
(c) Chattel Search Results. The Administrative Agent shall
have received legal opinions, UCC-11 Reports or reports from
nationally-recognized chattel search firms and similar information reflecting
that the security interests granted to the Lenders by the New Borrower and by
Lewisport are first and prior perfected security interests.
(d) Legal Opinion. The Administrative Agent shall have
received the legal opinion of the law firm of Messrs. Sullivan & Cromwell,
substantially in the form of Exhibit A attached hereto and incorporated herein
by this reference.
(e) Proceedings Satisfactory. All proceedings taken in
connection with the transactions contemplated herein shall be satisfactory to
the Lenders and their counsel. The Lenders and their counsel shall have received
copies of such documents as they may request in connection therewith, all in
form and substance satisfactory to the Lenders and their counsel.
(f) Financing Statements. The New Borrower shall have executed
and delivered to the Administrative Agent for filing in the appropriate
governmental offices all UCC-1 financing statements and other documents as the
Administrative Agent determines to be necessary to perfect the security
interests intended to be granted by the New Borrower under the Pledge Agreement.
7. General Provisions.
(a) Entire Agreement. This Agreement, the Credit Agreement, the Pledge Agreement
and the other documents to which the Borrowers (including the New Borrower) are
parties pursuant to the Credit Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof. No change,
modification, addition or termination of this Agreement shall be enforceable
unless in writing and signed by the party against whom enforcement is sought.
(b) Definitions. Terms used and not otherwise defined in this Joinder Agreement
shall have the meanings given to them in the Credit Agreement, as amended from
time to time.
(c) Benefit. This Agreement shall be binding upon the Obligors, the New Borrower
and their respective successors and assigns and shall inure to the benefit of
the Lenders and their respective successors and assigns.
(d) Waiver. No waiver of the provisions hereof shall be effective unless in
writing and signed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver or a waiver in respect of any breach or default,
whether of a similar or a different nature, unless expressly so stated in
writing.
(e) Governing Law. The validity, construction, interpretation and enforcement of
this Agreement shall be construed in accordance with the laws of the State of
New York without regard to its conflict of laws.
(f) Severability. If any provision of this Agreement or its application shall be
deemed invalid, illegal or unenforceable in any respect, the validity,
construction, interpretation and enforceability of all other applications of
that provision and of all other provisions and applications hereof shall not in
any way be affected or impaired.
(g) Further Assurances. From time to time at another party's request and without
further consideration, the parties shall execute and deliver such further
instruments and documents, and take such other action as the requesting party
may reasonably request, in order to complete more effectively the transactions
contemplated in this Agreement.
(h) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement may be
executed by each party on separate copies, which copies, when combined so as to
include the signatures of all parties, shall constitute a single counterpart of
this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the date set out in the
preamble of this Agreement but actually on the dates set forth below.
Commonwealth Industries, Inc.
By:
Title:
Commonwealth Aluminum Lewisport, Inc.
By:
Title:
Alflex Corporation
By:
Title:
Commonwealth Aluminum Concast, Inc.
By:
Title:
Commonwealth Aluminum Corporation
By:
Title:
"Subsidiary Guarantor" Commonwealth Aluminum Sales Corporation
By:
Title:
Bank One, Indiana, NA
By:
Title:
PNC Bank, National Association
By:
Title:
ABN AMRO Bank N.V.
By:
Title:
Bank of Montreal
By:
Title:
Credit Agricole Indosuez
By:
Title:
Mellon Bank, N.A.
By:
Title:
The Industrial Bank of Japan, Limited
By:
Title: